Barbara Hewson on recent legal developments in Britain which extend the state’s ability to interfere in the private lives of adults:
For centuries, the High Court has claimed an ‘inherent jurisdiction’ to take care of the persons and property of those who could not look after themselves. This power covers minors and wards of court, as well as adults who lack mental capacity. It originates in an ancient Crown Prerogative, going back to feudal times (1). But in a little-noticed legal development, some judges of the Family Division have started to claim an ‘inherent jurisdiction’ over the lives of adults in full possession of their faculties.
This is a disturbing trend. These rulings are given at private hearings. Parliament, the public, and indeed the Ministry of Justice, are none the wiser. The problem, at base, is a constitutional one. Our judges are unelected, and are not supposed to make laws. That is parliament’s function.
Parliament has said that people become adults at age 18 (2). Most people think that the point of reaching adulthood is that you get to decide where you live, and who your friends are. If you make unwise decisions, that is unfortunate, but it is not a basis for the authorities to intervene. However, last March, in a case called ‘DL’, the Court of Appeal said that the High Court is entitled to disregard adult decision-making (3).
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Judges of the Family Division of the High Court have been seduced by what Frank Furedi has called ‘the fatalistic sociology of the precautionary principle’. This views all human beings as innately powerless, vulnerable and at risk (7). And if to be at risk is a condition of life, then everyone becomes a legitimate target of judicial intervention and protection. This refusal by the courts to acknowledge adults as self-determining agents has ominous implications for liberty and the law.
